August 25, 2009

Federal Judge Questions DOJ Motivation to Dismiss Drug Case

A federal judge in Washington is questioning the government's motivation behind moving to dismiss the drug trafficking conspiracy charge against an international pharmaceutical businessman who is wanted for prosecution Mexico.

At a status hearing today in the government’s case against Zhenli Ye Gon, Judge Emmet Sullivan of U.S. District Court for the District of Columbia directed Justice Department prosecutors to address in a brief how the government may benefit from dismissal of the case without prejudice.

Government lawyers in late June moved to dismiss the indictment against Ye Gon without prejudice, citing evidentiary concerns and the fact Mexico intends to prosecute Ye Gon on charges that include organized crime, drug and firearms violations. The Ye Gon case has the attention of Mexico’s top prosecutors, Justice lawyers say. Ye Gon’s lawyers say the government belatedly turned over favorable evidence to the defense—evidence that the lawyers say undercuts the government’s case.

In court today, Sullivan noted that a judge in Mexico has refused to provide certain evidence to Justice Department lawyers to aid the prosecution in the United States and to fulfill obligations to turn over evidence to Ye Gon’s defense lawyers. That Mexico has not been fully cooperative is a “siginifcant point, and I’ve heard that more than once,” Sullivan said in court.

Sullivan questioned whether the Justice Department plans to refile charges against Ye Gon in Washington following the prosecution of Ye Gon in Mexico. Ye Gon’s lawyers, Manuel Retureta and A. Eduardo Balarezo, are fighting extradition. A hearing is scheduled for next month before Magistrate Judge John Facciola in Washington. Ye Gon’s lawyers say Ye Gon cannot get a fair trial in Mexico. Ye Gon, who was in court today, is seeking asylum in the United States. He has been jailed without bond since his arrest in Maryland in July 2007.

Sullivan had been scheduled to hear the government’s motion to dismiss Wednesday, but he has postponed the hearing. The judge today directed the opposing lawyers to address what impact, if any, a recent American Bar Association ethics opinion has on the position of the parties n the Ye Gon case. The opinion, published in July, addresses prosecution disclosure obligations.

Sullivan said he will hear the government’s motion to dismiss the indictment Sept. 14. The judge has said he will dismiss the charge against Ye Gon. The big issue is whether he tosses the case with prejudice. Government lawyers want the case dismissed without prejudice, saying that if Mexico is unable or unwilling to prosecute Ye Gon he can be returned to Washington to face prosecution here.

Sullivan asked Paul O’Brien, chief of the Justice Department’s Narcotics and Dangerous Drug Section, whether the government would consent to dismissing the case with prejudice. “Your honor, I’ll take a look at it,” O’Brien said. But O’Brien said his concern is that the Justice Department in no way believes there has been any misconduct in the case and the department does not believe prosecutors violated disclosure obligations.